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Text:ICLR R (Modaresi) v SSH [2013] UKSC 53, [2013] MHLO 63

MENTAL DISORDER — Mental health review tribunal — Application to — Patient applying for review of admission to hospital for assessment — Time limit for application expiring on public holiday — Application form faxed to hospital trust in time but not received by tribunal until first working day after public holiday — Tribunal wrongly treating application as out of time — Secretary of State refusing to refer patient’s case to tribunal because patient having fresh opportunity for application as now detained for treatment — Whether refusal to refer breaching patient’s Convention right to liberty — Whether lawful — Mental Health Act 1983 (as amended by Transfer of Tribunal Functions Order 2008, art 6, Sch 3, para 47), ss 66, 67 — Human Rights Act 1998, Sch 1, Pt I, art 5.4

Regina (Modaresi) v Secretary of State for Health and others

[2013] UKSC 53M; [2013] WLR (D) 309

SC(E): Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Wilson, Lord Sumption, Lord Carnwath JJSC: 24 July 2013

The Secretary of State for Health had not acted unlawfully in refusing to exercise his statutory discretion to refer the case of a detained patient to a mental health review tribunal for review in circumstances where the patient had a right to make an application to the tribunal herself.

The Supreme Court so held in dismissing an appeal by the claimant, Elham Modaresi, against the decision of the Court of Appeal (Mummery, Richards and Black LJJ) [2012] PTSR 999 to affirm the decision of Edwards-Stuart J [2011] EWHC 417 (Admin)M to dismiss her claim for judicial review of the Secretary of State’s decision to decline to refer her case to the First-tier Tribunal after the tribunal had ruled that her application for review of her detention for assessment under section 2 of the Mental Health Act 1983 was out of time.

The claimant, who suffered from schizophrenia, had been admitted to hospital for assessment and detained under section 2 of the 1983 Act. On 31 December 2010, 11 days later, she had given a completed application form for a review of her detention under section 66(1)(a) of the Act to a member of staff on her ward, who had faxed it to the hospital trust. The trust had not faxed the form to the tribunal until 4 January 2011, when the office reopened after the New Year holiday. The tribunal had notified the claimant that the application form had been received outside the 14-day time limit prescribed by section 66 and was therefore invalid. The claimant was by then being detained for treatment under section 3 of the Act and was entitled to make a separate application to the tribunal under section 66(1)(b). However, she had asked the Secretary of State to exercise his discretion to refer her case to the tribunal under section 67 of the Act, stating that otherwise she would be deprived of the hearing to which she was entitled as a section 2 patient and that a referral would ensure that she retained her right of application under section 3 in due course. The Secretary of State had refused the claimant’s request, although he had said that, if a fresh application were unsuccessful, he would consider any further request for a section 67 reference. The claimant unsuccessfully sought judicial review of the decisions of the Secretary of State, the tribunal and the trust. The Court of Appeal allowed the claimant’s appeal in respect of the tribunal’s decision, holding that the application had been made in time, but dismissed the appeal in respect of the claim against the trust and the Secretary of State.

LORD CARNWATH JSC (with whom LORD NEUBERGER OF ABBOTSBURY PSC, LORD WILSON and LORD SUMPTION JJSC agreed) said that, in so far as the claimant’s case relied on fundamental principles of access to the court, under article 5.4 of the Convention for the Protection of Human Rights and Fundamental Freedoms or otherwise, there was a short answer. She had not been deprived of her right of access to a court or tribunal to review her detention. She had such a right under section 3 of the 1983 Act. Given the claimant’s right to apply under section 3, there was no present conflict with article 5.4. The Secretary of State had been entitled to proceed on that basis. The risk of a breach would only arise if and when her first application had failed, and her circumstances had changed sufficiently to make a second application realistic. It was true that the Secretary of State had not promised to make a reference at that stage. Section 67 gave him no power to commit himself in that way. All he could do was to agree to consider the use of that power if and when it became necessary. But that discretion would be underpinned by his duty to avoid a breach of article 5.4. In the particular circumstances, the Secretary of State’s response to the request for a reference under section 67 was both lawful and reasonable.

BARONESS HALE OF RICHMOND DPSC gave a concurring judgment.

Appearances: Richard Gordon QC and Matthew Stockwell (instructed by Peter Edwards Law, Wirral) for the claimant; James Eadie QC and Paul Greatorex (instructed by Treasury Solicitor) for the Secretary of State.

Reported by: Jill Sutherland, Barrister

© 2013. The Incorporated Council of Law Reporting for England and Wales.